Karras v. Karras

[Cite as Karras v. Karras, 2016-Ohio-8079.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
GIORGIO A. KARRAS, et al. :
:
Plaintiff-Appellant/Cross-Appellee : Appellate Case No. 26814
:
v. : Trial Court Case No. 14-MSC-161
:
OURANIA M. KARRAS, et al. : (Probate Appeal from
: Common Pleas Court)
Defendant-Appellee/Cross-Appellant :
:
...........
OPINION
Rendered on the 9th day of December, 2016.
...........
JAMES R. KINGSLEY, Atty. Reg. No. 0010720, Kingsley Law Office, 157 West Main
Street, Circleville, Ohio 43113
Attorney for Plaintiffs-Appellants/Cross-Appellees, Giorgio A. Karras,
Maria A. Powers and Anastasios A. Karras
JAMES PAPAKIRK, Atty. Reg. No. 0063862, and HOWARD M. SCHWARTZ, Atty. Reg.
No. 0024571, Flagel & Papakirk, LLC, 50 East Business Way, Suite 410, Cincinnati, Ohio
45241
Attorneys for Defendant-Appellee/Cross-Appellant, Ourania Karras, Co-Trustee
JAMES L. JACOBSON, Atty. Reg. No. 0002031, Pickrel, Schaeffer and Ebeling, Co. LPA,
2700 Kettering Tower, Dayton, Ohio 45423-2700
Attorney for Defendant-Appellee, Estate of Andreas G. Karras, Deceased
ELIZABETH E.W. WEINEWUTH, Atty. Reg. No. 0078113, Vorys, Sater, Seymour and
Pease LLP, Suite 3500, Great American Tower, 301 East Fourth Street, Cincinnati, Ohio
45202
Attorney for Defendant-Appellee, PNC Bank, National Association
.............
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HALL, J.
{¶ 1} Plaintiffs Giorgio Karras, Anastasios Karras, and Maria Powers (collectively
the “Siblings”) appeal from the trial court’s entry of partial summary judgment in favor of
their step-mother, defendant Ourania Karras, on their claim for declaratory judgment
regarding whether certain assets were included in the estate of their deceased father,
Andreas Karras, or whether the assets were part of a trust Andreas had established with
Ourania long before his death.
{¶ 2} In a cross appeal, Ourania raises several arguments. First, she contends the
trial court erred in finding that she and Maria each were entitled to 50 percent of a joint-
and-survivor account that she maintains was part of the non-trust estate. Second, she
claims the trial court erred in finding (1) that she bore responsibility for expenses related
to her occupancy of the marital residence and (2) that she, despite being the surviving
settlor-trustee, could not act independently of the plaintiffs, who were successor co-
trustees. Third, she asserts that the trial court erred in holding that she could not prevail
on a conversion counterclaim related to property removed from a safe.
{¶ 3} The facts underlying the present dispute accurately were summarized in the
trial court’s July 28, 2015 judgment entry as follows:
On May 24, 2013, Andreas Karras (“Andreas”) passed away,
survived by his wife, Ourania Karras (“Ourania”), and his three children from
a previous marriage, Maria Powers (“Maria”), Anastasios Karras (“Tom”),
and Giorgio Karras (“Giorgio”) (collectively the “Siblings”). Andreas’ last will
and testament (the “Will”), dated July 15, 1992, nominates Ourania as
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executor of his estate (the “Estate”) and pours all of the assets of the Estate
into a trust dated the same day as the Will. The Will notes that all personal
and household effects have already been transferred to the trust by
operation of an Assignment of Furniture, Furnishings and Personal Effects
(the “Assignment”), executed the same day. The Assignment recites that
Andreas and Ourania have transferred all of their interest in personal
property which they own, or may own in the future, to the trust. A Letter of
Intent and Declaration of Gift (the “Letter of Intent”), also executed the same
day, provides that all property held in the trust is commonly owned, unless
otherwise designated in writing in the trust documents or in the manner in
which title is held in the trust.
The trust referenced in the Will is the Andreas G. Karras Trust (the
“Trust”), dated July 15, 1992. The Trust is a joint trust. During their joint
lives, Andreas and Ourania are authorized to transfer property into and out
of the Trust and to amend or revoke the Trust.
If Andreas predeceases Ourania, then upon his death, Ourania
continues to serve as surviving trustee and the Siblings assume the duties
of successor co-trustees. In that case, the trustees are directed to divide the
commonly owned Trust assets into two shares, one designated Survivor’s
Trust A, which is revocable by Ourania, and the other designated
Decedent’s Marital Share, Trust B, which is irrevocable. To the extent the
share designated Trust B exceeds the unified tax credit, the excess is to be
administered under the terms [of] Trust A. The trustees are directed to
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divide separately owned Trust assets differently. Ourania’s separate Trust
property is to be allocated to Trust A. Andreas’ separate Trust property is to
be divided into four equal shares; one share each to be allocated and
distributed to the Siblings according to the terms of the Trust [footnote
omitted], and one share to be held in trust for Ourania.
During Ourania’s lifetime, she is entitled to all of the net income and
principal from Trust A. From Trust B, she is entitled to all of the net income,
the principal necessary for her maintenance and support, and annual
payments of $5,000 or 5% of the value of the principal, whichever is greater.
Additionally, she is entitled to remain in the couple’s home (the “Residence”)
or to have the Residence sold in order to purchase other accommodations
or to provide for nursing home care. Upon Ourania’s death, the trustees are
directed to distribute $15,000 to Ismirne Mixalatou, or if she predeceases
distribution, to Joanne Mixalatou, if she is unmarried. The assets remaining
in Trust A and Trust B are to be divided into equal shares and distributed to
Andreas’ and/or Ourania’s children, if living, according to the terms of the
Trust.
On December 29, 2005, Andreas and Ourania executed an
Amendment to the Andreas G. Karras Trust Dated July 15, 1992 (the
“Amendment”). The Amendment deletes the provisions creating Trust A and
Trust B. Additionally, the Amendment modifies the allocation of Trust assets
so that, upon Andreas’ death, Ourania is to receive $200,000 in “liquid
funds” from “[Andreas’] separate Trust property,” free of trust, “in lieu of an
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allocation of Trust assets to Trust A or Trust B.” The remainder of Andreas’
separate Trust property is to be divided into equal shares and allocated to
the Siblings.
***
After executing the Estate Planning Documents, Andreas opened
numerous retirement, investment, savings, and checking accounts, the
majority of which were not titled in the name of the Trust, but rather were
titled jointly with other owners and/or were designated as payable to one or
more beneficiaries upon the death of the owner or owners. For instance,
seven years after Andreas and Ourania executed the documents, in
December 1999, Andreas opened an individual retirement account through
Pioneer Investments (“Pioneer IRA”). On the application for the account,
Andreas is listed as the owner and Ourania is listed as the sole beneficiary.
Consistent with the forgoing, the financial advisor who assisted Andreas in
establishing the account asserts that Andreas “affirmatively stated that he
intended for these Pioneer IRA funds to benefit his wife, Ourania Karras,
and that he had made provision for his children elsewhere.”
Three years later, on February 15, 2002, Andreas and Ourania
opened a checking account in their names (“PNC Checking 8872”). The
paperwork indicates that Andreas, Ourania, and Maria are owners having
rights of survivorship. On May 10, 2006, Andreas and Ourania opened
another checking account in their names (“PNC Checking 0076”), with no
other owners. On August 13, 2008, Andreas and Ourania purchased a
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certificate of deposit, also titled in their names (“PNC CD 0897”). The
paperwork indicates that Andreas, Ourania, and Maria are owners having
rights of survivorship, and that Tom is a payable on death beneficiary. On
August 25, 2008, Andreas opened a savings account in his and Maria’s
names (“PNC Savings 2432”). The paperwork indicates that he and Maria
are owners having rights of survivorship, and that Ourania is a payable on
death beneficiary.
During this time, Andreas also opened accounts titled in his name
and accounts titled in the name of the Trust. For instance, on April 28, 2010,
Andreas opened a checking account titled in his name (“PNC Checking
3086”), with no other owners. Although the dates on which they were
opened is unknown, at least two other accounts (“PNC Investment 0674”
and “Merrill Lynch 7127”) were titled in Andreas’ name, with no other
owners, and various accounts with Wells Fargo were titled in the name of
the Trust.
Shortly after Andreas’ death, the Siblings and Ourania made several
transfers from the accounts. On May 24, 2013, Maria withdrew $21,000
from PNC Checking 8872. Subsequently, she withdrew $60,000 from PNC
Savings 2432. On August 13, 2013, Ourania closed PNC CD 0897 and
transferred the proceeds to a checking account titled in her name.
(Doc. #100 at 2-5).
{¶ 4} In May 2014, the Siblings filed a complaint for declaratory judgment,
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conversion, and removal of Ourania as a trustee. Among other things, they sought a
declaratory judgment that various accounts (including accounts referenced above) were
trust assets. They also alleged that Ourania improperly had converted the CD mentioned
above when she closed the account and transferred the proceeds into her own checking
account. Based on her actions, they sought Ourania’s removal as a trustee.
{¶ 5} Ourania subsequently asserted several counterclaims. Specifically, she
sought a declaratory judgment regarding her ability to act independently as a trustee, her
ability to live in the marital residence expense free, and ownership of various accounts
and assets. She also alleged conversion and concealment of property belonging to her,
the estate, or the trust, and she requested an accounting. The parties filed competing
motions for partial summary judgment and summary judgment on the respective claims
and counterclaims. The trial court resolved these motions, and others, in a July 28, 2015
decision and entry (Doc. #100) from which the present appeal and cross appeal have
been filed.
{¶ 6} As relevant here, the trial court granted Ourania summary judgment on the
Siblings’ declaratory-judgment claim regarding ownership of various accounts. Contrary
to the Siblings’ argument, the trial agreed with Ourania that the disputed accounts were
not part of the trust. The trial court also found Ourania entitled to summary judgment on
her declaratory-judgment counterclaim that she alone is entitled to the Pioneer IRA and
PNC 0076 accounts mentioned above. The trial court concluded, however, that Ourania
and Maria were entitled to split equally the balances remaining in PNC Checking 8872
and PNC CD 0897. With regard to Ourania’s ability to act independently as a settlor-
trustee, the trial court concluded that she was required to act jointly with the Sibling co-
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trustees and that she could not remove them. Therefore, the trial court found the Siblings
entitled to summary judgment on her declaratory judgment counterclaim regarding her
ability to act independently. As for Ourania residing in the marital residence, the trial court
determined that the trust granted her a life estate in, and exclusive possession of, the
residence. The trial court also concluded, however, that she was responsible for paying
the associated taxes and expenses. Accordingly, the trial court found the Siblings entitled
to summary judgment on their claim that Ourania was not permitted to live in the residence
expense free. It found Ourania entitled to summary judgment, however, on her
counterclaim that Tom Karras had no right to continue living in the residence.
{¶ 7} With regard to conversion, the trial court found Ourania entitled to summary
judgment on the Siblings’ claim, as co-trustees, that she improperly had converted the
PNC CD referenced above by closing the account and transferring the proceeds to her
own account. The trial court reached this conclusion based on its finding that the CD was
not a trust asset. The trial court also determined, however, that Maria personally had a
conversion claim regarding the CD because Maria and Ourania were both surviving
owners of the CD funds. As for Ourania’s own conversion counterclaims, the trial court
found the Siblings, as co-trustees, entitled to summary judgment. The trial court found a
genuine issue of material fact, however, regarding a conversion claim by Ourania against
Maria regarding the latter’s withdrawal of $21,000 from PNC Checking 8872.
{¶ 8} The trial court next found the Siblings entitled to summary judgment
regarding Ourania’s concealment counterclaim insofar as it related to trust property. The
trial court found the concealment issue viable, however, insofar as it related to estate
property, which included items in a safe and an automobile. Finally, the trial court found
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Ourania entitled to summary judgment on the Siblings’ claim that she had violated no-
contest provisions of Andreas’ will and the trust. (Doc. #100 at 16-31). Although the trial
court’s ruling did not dispose of all issues between the parties, Civ.R. 54(B) certification
has been affixed.1
{¶ 9} In their sole assignment of error on appeal, the Siblings contend the trial court
erred in finding that property acquired after July 15, 1992 did not constitute trust property.
Their argument concerns the various accounts mentioned above that were opened after
the trust was created. The Siblings assert that these accounts were part of the trust for
two reasons: (1) valuable consideration was paid for a declaration that all later-acquired
property would be held in trust and (2) subsequent to acquiring the accounts, Andreas
repeatedly manifested his intent that they were to be included in the trust. Therefore, the
Siblings maintain that the trial court erred in entering summary judgment against them on
their declaratory-judgment claim that the accounts were trust assets.
{¶ 10} Upon review, we see no error in the trial court’s ruling. The Siblings’
argument implicates language in the July 15, 1992 trust and a simultaneous assignment
purporting to make later-acquired property part of the trust. In relevant part, the trust
document reads:
The Trust is intended by the Trustors to be the recipient of all their
assets, whether commonly owned, community, quasi-community, separate
or joint, as well as the named Beneficiary of all interests of which the
Trustors are, or may become, Beneficiaries.
1 At this court’s request, the trial court issued a September 7, 2016 entry clarifying that it
intended to and did affix Civ.R. 54(B) certification to the decision and judgment entry from
which the parties have appealed and cross appealed.
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(Emphasis added.) (Doc. #2 at Karras Trust pg. 4).
{¶ 11} The assignment executed by Andreas and Ourania when the trust was
created provides:
We, Andreas G. Karras and Ourania A. Karras, do hereby sell,
transfer and assign, without consideration, all right, title and interest which
we have in our personal property of every kind, including but not limited to
furniture, fixtures, appliances, furnishings, antiques, pictures, china,
silverware, glass, books, jewelry, wearing apparel, recreational vehicles,
tools, and all policies of fire, burglary, property damage, and other insurance
on or in connection with the use of this property, stocks, bonds, mutual
funds, certificates of deposit, promissory notes, savings accounts, checking
accounts, which we now own or which we may own in the future, to:
The Andreas G. Karras Trust, dated July 15, 1992, Andreas G.
Karras and Ourania A. Karras, Trustor(s) and/or Trustee(s).
(Emphasis added.) (Id. at Assignment of Furniture, Furnishings, and Personal Effects).
{¶ 12} In their appellate brief, the Siblings assert that “[w]hen and how after
acquired property becomes an asset of a trust is an issue of first impression in Ohio.”
(Siblings’ Oct. 15, 2015 brief at 12). They acknowledge the widely-recognized rule,
however, that “an interest which has not come into existence or an expectation of hope
of receiving property in the future cannot be held in trust.” (Id.). We agree. The
Restatement of Trusts expressly provides that “[a]n expectation or hope of receiving
property in the future, or an interest that has not come into existence or has ceased to
exist, cannot be held in trust.” Restatement (Third) of Trusts § 41 (2003). Restatement
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“notes” following § 41 elaborate on this rule:
b. Nonexistent interests. An interest may not be in existence because
the thing that would be the subject matter of the interest is not itself in
existence or, although the thing exists, no one has an interest in it. In these
cases, no one has an interest in anything of which there could be a
declaration of trust or a transfer to another in trust. A person can make a
promise to create a trust of an interest in such a thing should it thereafter
be acquired, but such an agreement is not binding unless the requirements
of the law of contracts are satisfied. * * *
c. Contractual liability. If consideration is received for a purported
declaration of trust or assignment in trust of a bare expectancy or
nonexistent property, the purported declaration or transfer is treated as a
contract to create a trust even though it is worded as a present declaration
or transfer. * * *
d. Intended trust property subsequently acquired. A person
gratuitously purports to declare a trust, or to make a transfer to another in
trust, of a bare expectancy or nonexistent property. No trust arises when
the person later acquires the intended trust property in the absence of some
express or implied manifestation at the later time of an intent to give effect
to the trust. * * *
Restatement (Third) of Trusts § 41 (2003) at notes b, c, and d.
{¶ 13} While acknowledging the general rule that later-acquired property is not
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trust property, the Siblings argue that the scenarios depicted in notes “c” and “d” above
apply here. First, they assert that Andreas’ and Ourania’s declaration of trust with respect
to later-acquired property is enforceable, as a matter of contract law, because it was
supported by consideration. 2 Specifically, they contend “[t]he consideration was
$200,000 of Andreas’ money payable to Ourania and her right to live in the house.”
(Siblings’ brief at 12). Second, the Siblings maintain that the accounts at issue constituted
trust property because Andreas repeatedly manifested his intent, after acquiring the
accounts, that they were part of the trust.
{¶ 14} Neither argument is persuasive. As set forth above, the 1992 assignment
that transferred property into the accompanying trust explicitly stated that the assignment
of assets was “without consideration.” Moreover, as Ourania correctly points out, the
$200,000 mentioned by the Siblings constituted explicit consideration for the 2005 trust
amendment referenced above that deleted the creation of the “A/B” aspects of the original
trust. Nothing suggests that it was consideration for a contract-based agreement to
include later-acquired property as a trust asset. Finally, the Siblings have not
demonstrated that Ourania’s right to live in the marital residence constituted consideration
for any promise to hold later-acquired assets in trust.
{¶ 15} With regard to the second issue, the Siblings contend Andreas repeatedly
manifested his intent for the disputed accounts to be included in the trust after opening
them. In support, they cite Maria Powers’ deposition testimony that Andreas told her
2 The Siblings’ appellate brief contains several pages of analysis. (See Siblings’ brief at
7-12). Most of it, however, involves property already in existence at the time of the trust.
The Siblings present a single page of argument about later-acquired property and the
effect of consideration. (Id. at 12).
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Ourania would get $200,000 and nothing else from the trust. She claimed Andreas said
the Siblings would get “the rest.” (Powers depo. at 299). These statements, however, fail
to resolve which assets were included in the trust to be divided by the Siblings. When
addressing whether the accounts at issue were in or out of the trust, which is the issue
before us, the trial court reasoned:
With respect to the Pioneer IRA, the affidavit of the financial advisor
who established the account shows that Andreas intended for the account
to pass pursuant to its terms upon his death. Likewise, the documents
creating the PNC accounts show that Andreas and Ourania intended for the
accounts to pass pursuant to their terms upon the death of one or more of
their owners. Significantly, the PNC accounts were designated personal
accounts, despite the fact that the documents provided an option to
designate them as trust accounts. Additionally, the accounts listed multiple
owners with rights of survivorship. Indeed, in some cases, the accounts not
only listed multiple owners, but also payable on death beneficiaries. Given
that the Siblings do not offer any evidence that a contrary intention was
manifested at the time the IRA and PNC accounts were opened, the Court
concludes that Ourania is entitled to summary judgment on the Siblings’
claim that the Disputed Accounts belong to the Trust.
(Doc. #100 at 18).
{¶ 16} We concur in the trial court’s analysis. In her deposition, Maria Powers
insisted that Andreas “wanted everything to go in the trust.” (Powers depo. at 91). But
whatever “everything” may have encompassed, Andreas’ actions when setting up the
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accounts at issue demonstrate that he did not intend for those accounts to be trust assets.
As the trial court correctly noted, the accounts were designated as personal accounts
rather than trust accounts and had rights of survivorship and payable-on-death
beneficiaries. Such contemporaneous manifestations of intent establish that the accounts
were not trust assets. We see no error in the trial court’s resolution of the issue.
Accordingly, the Siblings’ sole assignment of error is overruled.
{¶ 17} In her first assignment of error on cross appeal, Ourania asserts that the
trial court erred in finding her and Maria each entitled to one-half of the PNC CD account
referenced above. The trial court ruled that two PNC accounts, “PNC checking 8872 and
PNC CD 0897” were divided 50/50 between Ourania and Maria. Her cross-appellant’s
first assignment of error challenges the trial court’s ruling regarding “the amounts
remaining in the joint and survivorship accounts.” (Emphasis added.) However, her
argument only deals with the CD account. Also the evidence she argues creates a
genuine issue of material fact is her affidavit discussing the opening of the CD account
with “ou[r] joint funds,” not the PNC checking 8872 account. Accordingly, the record
supports the trial court decision for a 50/50 split of the checking 8872 account, and we
limit our discussion to whether summary judgment was appropriate only to the PNC CD
0897 account.
{¶ 18} Based on our resolution of Siblings’ assignment of error, the trial court
correctly concluded that the PNC account, which was a joint-and-survivor account, was
not a trust asset. In analyzing ownership of the PNC account (and other accounts not at
issue here), the trial court reasoned:
* * * It is well-settled that where there are joint account owners with
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rights of survivorship, the surviving owner or owners are entitled to the
balance remaining in the account upon the death of one of the owners.
[Citation omitted.]. In cases in which it is undisputed that neither of two
surviving owners contributed to the account, each is entitled to an equal
share of the remaining balance. Weyand v. Barnes, 10th Dist. Franklin No.
08AP-857, 2009-Ohio-3239, ¶22. In contrast, in cases in which the surviving
owners’ contributions are disputed, at least one Ohio appellate court has
indicated that each is entitled to her net contribution, plus an equal share of
the remaining balance. Miller v. Miller, 139 Ohio App. 3d 512, 744 N.E.2d
778 (8th Dist.2000).
***
* * * Andreas, Ourania, and Maria are joint owners, with rights of
survivorship, of PNC Checking 8872 and PNC CD 0897. There is no dispute
that Maria did not contribute any funds to these accounts. Maria, citing
Ourania’s deposition testimony that she was unemployed and financially
dependent on Andreas, argues that, likewise, there is no dispute that
Ourania did not make any contributions. In response, Ourania alleges that
the contributions came from the Trust assets, which were commonly owned
pursuant to the Letter of Intent. However, Ourania offers no evidence
showing that the Trust was the source of the contributions, and
consequently, fails to show that there is a genuine issue of material fact as
to her entitlement to the remaining balances. Accordingly, the Court
concludes that Ourania and Maria are each entitled to one-half of the
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balances remaining in PNC Checking 8872 and PNC CD 0897 at the time
of Andreas’ death.
(Doc. #100 at 19-20).
{¶ 19} On appeal, Ourania challenges the trial court’s award of one-half of the PNC
CD account to Maria. Specifically, Ourania contends she presented evidence that she
and Andreas opened the PNC CD with “joint funds.” Regardless of whether these funds
came from the trust or from non-trust assets belonging to Ourania and Andreas
personally, Ourania asserts that she was a “joint contributor” of all of the funds in the PNC
account. Therefore, she contends she was entitled to 100 percent of the balance. In
support of her argument, Ourania refers to the following portion of her summary judgment
affidavit in which she averred:
Later, Andreas told me that we would set up an interest-bearing
certificate of deposit at PNC Bank. In 2008, we went together and signed
the consumer signature card attached at Exhibit B. Maria Powers was not
present when we signed it. These were ou[r] joint funds and we discussed
that this entire certificate of deposit was mine in the event of Andreas’ death.
We never discussed that my share in the certificate of deposit would be
limited or that it was a substitute for anything else I would receive under the
Will, the Trust, the Pioneer IRA or any other account.
(Emphasis added) (Doc. #58 at ¶10).
{¶ 20} Upon review, we are persuaded, in part, by Ourania’s argument. The case
law governing the disposition of the PNC CD is clear. The Ohio Supreme Court
summarized this law in Estate of Cowling v. Estate of Cowling, 109 Ohio St. 3d 276, 2006-
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Ohio-2418, 847 N.E.2d 405, as follows:
“The existence of a joint and survivorship bank account raises a
rebuttable presumption that co-owners of the account share equally in the
ownership of the funds on deposit.” Vetter v. Hampton (1978), 54 Ohio St. 2d
227, 8 O.O.3d 198, 375 N.E.2d 804, paragraph three of the syllabus. This
presumption applies in the absence of evidence to the contrary. Id. at
paragraph four of the syllabus; see Wright v. Bloom (1994), 69 Ohio St. 3d
596, 602–603, 635 N.E.2d 31. “A joint and survivorship account belongs,
during the lifetime of all parties, to the parties in proportion to the net
contributions by each to the sums on deposit, unless there is clear and
convincing evidence of a different intent.” In re Estate of Thompson (1981),
66 Ohio St. 2d 433, 20 O.O.3d 371, 423 N.E.2d 90, paragraph one of the
syllabus; see Uniform Probate Code 6–103. We expressly stated that
Thompson did not “significantly alter our earlier case law” but merely
amended our analytic framework to better effectuate “the intent of the
parties to create joint and survivorship accounts.” Thompson, 66 Ohio St. 2d
at 439, 20 O.O.3d 371, 423 N.E.2d 90. This language indicates that,
although we adopted a new presumption for determining ownership of joint
and survivorship accounts, the presumption of equal ownership continues
to exist when net contributions are not proven. See Uniform Probate Code
6–103, Official Comment (courts should “divide the account equally among
the parties to the extent that net contributions cannot be proven”).
Id. at ¶ 12.
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{¶ 21} The foregoing case law dictates that, prior to Andreas’ death, the funds in
the PNC CD account belonged to Andreas, Ourania, and Maria in proportion to their net
contributions. 3 Maria concedes that she did not contribute anything to the account.
Therefore, if the funds to open the account were in part Ourania’s, prior to his death, the
funds in the account belonged solely to Andreas and Ourania in proportion to each’s net
contributions. The evidence in the record about the nature of those contributions is
Ourania’s affidavit that the funds in the account were “joint funds.” She appears to mean
that they were marital property. If so, a reasonable interpretation is that she and Andreas
each owned 50 percent of the funds that they jointly placed in the CD prior to his death.
This conclusion is consistent with the Ohio Supreme Court’s recognition in Cowling that
a joint-and-survivorship account belongs to the parties in proportion to their contribution
If ownership of the funds were disputed during Andreas’ lifetime, none of the funds would
be Maria’s property because she admittedly contributed nothing.
{¶ 22} Upon Andreas’ death, the funds in the PNC CD belonged to the surviving
parties, Ourania and Maria, “in proportion to their previous ownership interests
augmented by an equal share for each survivor of any interest the decedent may have
owned in the account immediately before his death * * *.” Thompson, at syllabus
paragraph two, overruled on other grounds by Wright, supra.4 Thus, we conclude there
3 “Net contributions” are “ ‘the sum of all deposits to an account made by or for the party,
less all payments from the account made to or for the party which have not been paid to
or applied to the use of another party and a proportionate share of any charges deducted
from the account, plus a proportionate share of any interest or dividends earned.’ ”
Cowling, at ¶ 13, quoting Uniform Probate Code 6–211.
4 Although Wright purports to overrule paragraph two of the syllabus of Thompson, that
paragraph contains two sentences. Wright addressed and overruled the first sentence,
which states: “Sums remaining on deposit at the death of a party to a joint and
survivorship account belong to the surviving party or parties as against the estate of the
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is a genuine issue of material fact whether Ourania is entitled to her percentage of the
“joint funds” used to open the account, as well as an equal share, along with Maria, of
Andreas’ portion of the contribution of funds. Ourania, upon proof that the account was
opened with non-specific “joint” funds, could be entitled to 75 percent of the funds in the
PNC CD at the time of Andreas’ death, and Maria is entitled to 25 percent. Accordingly,
Ourania’s first assignment of error is sustained to that extent.
{¶ 23} We reject Ourania’s additional argument, however, that she should have
been granted summary judgment on Maria’s conversion claim regarding the PNC CD.
The trial court concluded that the conversion claim remained viable because Maria was
entitled to 50 percent of the funds in the CD account, which Ourania had closed after
Andreas’ death. Based on her belief that she is entitled to 100 percent of those funds,
Ourania insists that Maria’s conversion claim fails as a matter of law. We disagree.
Although we have concluded a genuine issue of material fact whether the CD account
was opened with “joint funds,” Oriania does not claim that the account was opened with
her sole money meaning that some amount of the account is Maria’s by way of
decedent unless there is clear and convincing evidence of a different intention at the time
the account is created.” (Emphasis added.) Thompson, at paragraph two of the syllabus.
Wright eliminated the opportunity to present evidence of a “different intention” and held
that funds remaining on deposit at the death of a party conclusively do belong to the
surviving party or parties. Wright at 603 (holding that “survivorship rights under a joint and
survivorship account of the co-party or co-parties to the sums remaining on deposit at the
death of the depositor may not be defeated by extrinsic evidence that the decedent did
not intend to create in such surviving party or parties a present interest in the account
during the decedent's lifetime”). Wright did not address, and therefore did not overrule,
the second sentence of paragraph two of Thompson’s syllabus, which, as we have noted
above, explains how to divide the funds in a joint-and-survivorship account upon the death
of one party when multiple surviving parties remain. Wright did not address that issue
because in Wright there was only one surviving co-party.
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survivorship of Andreas’ interest. Therefore, the trial court did not err in allowing Maria’s
conversion claim to proceed. For the foregoing reasons, Ourania’s first assignment of
error is sustained in part and overruled in part.
{¶ 24} In her second assignment of error, Ourania contends the trial court erred in
declaring (1) that the trust was not responsible for paying real-estate taxes and other
expenses related to her use of the marital residence and (2) that, despite her status as
the surviving settlor of the trust, she could not act independently of the Sibling co-trustees.
{¶ 25} With regard to the former issue, the trial court held that the trust granted
Ourania a life estate in the marital residence. It also held that Ourania was not entitled to
live in the residence expense free and that the trust was not obligated to pay her real
estate taxes or other expenses. In reaching this conclusion, the trial court found the trust
language unambiguous. (Doc. #100 at 24-26). In particular, it quoted two provisions of
the trust. The first addresses occupancy of the residence and provides:
The Trustee may permit any Settlor Beneficiary to occupy rent free
any residence constituting a part of the assets of a Trust for such
Beneficiary and to pay the real estate taxes thereon, expenses of
maintaining said residence in suitable repair and condition and hazard
insurance premiums on said residence; provided, however, the Trustee
shall not exercise this power in any way which would deprive either Settlor
under this Trust of the beneficial enjoyment of the Trust and either Settlor
shall have the right to limit, restrict or terminate the Trustee’s exercises of
this power if it interferes with such beneficial enjoyment.
(Doc. #2 at Karras Trust pg. 21).
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{¶ 26} The second trust provision quoted by the trial court states:
The Trustee shall retain in trust the home and furnishings located at
4609 Glenheath Drive, Dayton, Ohio, or the current residence of the Settlors
at the time of the death of the Husband, for as long as Ourania A. Karras
desires to live therein. If said individual desires other accommodations, the
real property is to be sold and the proceeds used to buy such other
appropriate accommodations. Such purchase shall remain in the trust. If
appropriate, the home and furnishings may be sold and the funds used to
provide for a nursing home for said individual. Upon the death of the
Surviving Settlor, the home and furnishings, or remaining funds therefrom,
shall be allocated and distributed as specified as hereinafter provided to the
Primary Beneficiary(s) of the Settlors. The retention of said property is to in
no way imply that the Surviving Settlor cannot draw from the equity for future
investments, improvements or for the Settlor(s) general welfare. The
purpose in retaining the real property in Trust is to benefit the Settlors and
to assure the allocation and distribution to the Primary Beneficiary(s) as
hereinafter provided.
(Id. at 38-39).
{¶ 27} The trial court reasoned:
Read together, these provisions do not disclose any ambiguity
regarding whether Ourania is authorized to live in the Residence expense-
free. The first provision generally provides that the trustee may allow a
settlor to occupy any real property held by the Trust expense-free, whereas
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the second more specifically directs the trustee to allow Ourania to live in
the Residence for as long as she desires to do so, but does not direct the
trustee to pay the taxes and expenses incurred by the Residence. The
second provision is sufficient to grant Ourania a life estate in, and exclusive
possession of, the Residence. [Citations omitted.] With this entitlement, and
consistent with the Trust’s silence on the issue, comes the responsibility to
pay taxes and expenses incurred by the residence. [Citations omitted.]
Accordingly, the Court concludes that the Siblings are entitled to summary
judgment on their claim that Ourania is not permitted to live in the Residence
expense-free and that Ourania is entitled to summary judgment on her claim
that Tom is not permitted to remain in the Residence.
(Doc. #100 at 25-26).
{¶ 28} On appeal, Ourania asserts that a primary responsibility of the trustee is to
consider her needs as surviving spouse even if that requires invading the trust estate.
(See Doc. #2 at Karras Trust pg. 14). She also points out that the last sentence of the first
provision cited by the trial court give the surviving settlor the right to limit, restrict, or
terminate the trustee’s power if the trustee interferes with her “beneficial enjoyment” of
the trust. Finally, Ourania maintains that it is implausible to read the second provision
cited by the trial court as allowing her to sell the residence or draw from the equity while
not requiring the trust to pay her property taxes and other expenses.
{¶ 29} As a threshold matter, we note that the trial court’s finding regarding
Ourania’s right to a life estate in the residence is not before us. The Siblings’ opening
appellate brief did not raise as an issue on appeal the trial court’s declaratory judgment
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regarding Ourania’s right to a life estate. They raise the issue only in their reply to
Ourania’s cross-appeal, which challenges the trial court’s finding that the trust is not
required to pay all of her housing-related expenses. The Siblings insist that they can raise
the life-estate issue to “defend” the trial court’s judgment regarding payment of expenses
because Ourania has “broached the issue.” (Siblings’ December 10, 2015 Reply Brief at
3). We disagree. The issue Ourania’s cross appeal has broached is the trust’s
responsibility for paying her housing-related expenses. Whether she enjoys a life estate
or merely a license to live in the residence (the issue raised in the Siblings’ reply) is not a
“defense” to the trial court’s declaratory judgment regarding the trust’s non-obligation to
pay her expenses. If the Siblings desired to challenge the trial court’s declaratory-
judgment regarding Ourania’s life estate, they were required to raise that issue in their
own appeal. Because they did not, and because they are raising the issue as a sword to
modify the trial court’s judgment, the life-estate issue is not properly before us.
{¶ 30} With regard to the issue that is before us, the trial court correctly held that
the trust unambiguously is not required to pay Ourania’s property taxes or other housing-
related expenses. The most pertinent trust provision, the first one cited by the trial court,
states: “The Trustee may permit any Settlor Beneficiary to occupy rent free any residence
* * * and to pay the real estate taxes thereon, expenses of maintaining said residence in
suitable repair and condition and hazard insurance premiums on said residence * * *.”
(Emphasis added.) This language makes clear that Ourania, the settlor beneficiary,
enjoys the right to occupy the residence but has the corresponding obligation to pay the
expenses. The second trust provision cited by the trial court does not alter this conclusion
as it says nothing about the payment of expenses.
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{¶ 31} Nor are we persuaded by Ourania’s reference to trust language about a
primary responsibility of the trustee being to consider her needs as surviving spouse. This
general language does not nullify the specific provision directly addressing her occupancy
of the marital residence and her payment of associated expenses. Finally, Ourania’s
reliance on the latter part of the first trust provision quoted by the trial court is
unpersuasive. After stating that the trustee may permit Ourania to occupy the residence
and to pay the related expenses, the provision adds the following caveat: “however, the
Trustee shall not exercise this power in any way which would deprive either Settlor under
this Trust of the beneficial enjoyment of the Trust and either Settlor shall have the right to
limit, restrict or terminate the Trustee’s exercises of this power if it interferes with such
beneficial enjoyment.”
{¶ 32} We reject Ourania’s reliance on the foregoing language for at least three
reasons. First, enforcing a requirement for her to pay the associated expenses if she lives
in the marital residence cannot, ipso facto, establish a deprivation of her beneficial
enjoyment of the trust. Otherwise, the first part of the provision at issue (obligating her to
pay those expenses) never could have any force or effect. Second, the issue came before
the trial court in the context of a declaratory-judgment action. The issue was whether the
trust was obligated to pay the disputed expenses. Based on the plain trust language
quoted above, the trust unambiguously is not required to pay those expenses. The fact
that, under certain circumstances, a trustee may be able to alter that result does not
negate the fact that, at present, the trust, by its own terms, is not required to pay Ourania’s
housing-related expenses. Third, for the reasons set forth below, we are unconvinced
that Ourania may act alone to alter trust provisions she dislikes, even if she believes her
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“beneficial enjoyment” is being denied. For each of these independent reasons, the trial
court’s declaratory-judgment ruling was correct regarding the trust’s non-obligation to pay
Ourania’s housing expenses.
{¶ 33} As we just noted, Ourania’s second assignment of error also challenges the
trial court’s ruling that she cannot act independently and must act in concert with the co-
trustee Siblings. Ourania insists that the plain language of the trust allows her to act
independently with regard to the trust, its administration, and the disposition of its assets.
{¶ 34} In support, Ourania quotes three trust provisions. They state:
The above named Settlor Trustees [Andreas and Ourania] shall
serve jointly and severally and either shall have full authority for the Trust
without the consent of the other, to act independently in performing
transactions on behalf the Trust * * *.
(Doc. #2 at Karras Trust pg. 1).
When there is more than one Successor Trustee acting
simultaneously with other designated Trustees, the Co-Trustees so serving
must act in concert. This provision does not apply to the Settlor(s).
(Id. at 8).
The Surviving Settlor shall be the Trustee, unless and until, the
Trustee resigns in writing, or is determined to be incompetent as per the
terms herein provided. The Surviving Settlor continues to retain all absolute
rights to discharge or replace any Successor Trustee of any portion or share
of the Trust which is revocable by the Surviving Settlor, as long as the
Settlor is competent.
(Id. at 12).
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{¶ 35} Ourania argues that the foregoing provisions are unambiguous and that
they allow her to act alone as the surviving settlor, without the concurrence of the co-
trustee Siblings. (Ourania’s November 4, 2015 brief at 22-23).
{¶ 36} Upon review, we find Ourania’s argument unpersuasive. The first provision
she cites governs the relationship between the original settlor-trustees, namely Ourania
and Andreas. It does not address what occurs after the death of one of the original settlor-
trustees. The third provision apparently gives the surviving settlor, Ourania, absolute
authority over any portion of the trust that is revocable. In its ruling, however, the trial
court correctly recognized that the only revocable portion of the trust was the “A” portion
of the original A/B trust, which the 2005 trust amendment eliminated. (Doc. #100 at 24).
“Thus, the only Trust presently existing is irrevocable.” (Id.). Finally, the second provision
states that multiple co-trustees must act in concert. This plainly applies to the Siblings.
The second provision then adds: “This provision does not apply to the Settlor(s).” It is
unclear to us whether this means a settlor need not act in concert with successor co-
trustees. In any event, another trust provision clarifies the issue in the present case by
explicitly stating that, upon Andreas death, Ourania is a co-trustee along with the Siblings.
Under the heading “Surviving Trustee,” it states:
In the event of the death of Andreas G. Karras, (an original Trustee)
* * * the Trustors nominate and appoint Ourania A. Karras, Maria A. Karras,
Anastasios A. Karras and Georgios A. Karras to serve as Co-Trustee
hereunder with said Surviving Trustee, without the approval of any court.
(Emphasis added.) (Doc. #2 Karras Trust at 7).
{¶ 37} Notably, the trust provided a different outcome if Ourania had predeceased
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Andreas. In that circumstance, he would have “serve[d] as sole trustee.” (Id.). Thus, a fair
reading of the trust as a whole is that Andreas and Ourania intended for her to have the
assistance of co-trustees (of which she was one) who must act in concert if Andreas
predeceased her, but that Andreas was to make his own decisions as “sole trustee” if
Ourania predeceased him. No purpose would be served by designating Ourania a co-
trustee (who by definition must act in concert with other co-trustees) upon Andreas’ death
if she simultaneously could disregard the co-trustees’ decisions in her role as surviving
settlor. In our view, such an interpretation is unreasonable.
{¶ 38} In rejecting Ourania’s authority to act independently, the trial court
concluded that “[i]n keeping with the intention to limit Ourania’s authority with respect to
irrevocable trusts, the Court concludes that the Trust, as amended, does not authorize
Ourania to act independently as trustee or to remove the Siblings as co-trustees of the
Trust. Thus, the Court concludes that the Siblings are entitled to summary judgment on
Ourania’s claim that she is entitled to act independently as trustee.” (Doc. #100 at 24).
We see no error in this determination. For the foregoing reasons, Ourania’s second
assignment of error is overruled.
{¶ 39} In her third assignment of error, Ourania challenges the trial court’s entry of
summary judgment against her on her conversion counterclaim regarding the contents of
a safe. Her argument concerns a safe in the marital residence that the Siblings opened
and emptied without her knowledge after Andreas’ death.
{¶ 40} In resolving Ourania’s conversion claim, the trial court reasoned:
Finally, turning to the Safe Property, it is unclear whether Andreas
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owned the property when the Estate Planning Documents were executed
and, thus, whether the property belonged to the Estate or to the Trust when
it was removed from the safe. To the extent that the property belonged to
the Estate, then Ourania, individually and as trustee, cannot show that
either she or the Trust owned or had a right to possess the property at the
time of the alleged conversion. * * * To the extent the Safe Property
belonged to the Trust, there is no dispute that the Siblings’ counsel is
holding in their trust account the cash that was removed and that the
Siblings, as co-trustees, are holding the remaining property until resolution
of this litigation. Thus, even assuming that the Siblings’ removal of the
property was wrongful, Ourania, as trustee cannot show that the Trust has
been damaged as a result of the removal.
Based on the foregoing, the Court concludes that the Siblings are
entitled to summary judgment on Ourania’s conversion claims * * *.
(Doc. #100 at 28).
{¶ 41} On appeal, Ourania contends the trial court’s analysis ignored a third
possibility, namely “that some or all of the property was After-Acquired Property that
belonged to Ourania personally, rather than to the Estate or Trust.” (Ourania’s November
4, 2015 brief at 24). During her deposition, she testified that Andreas had told her some
unidentified “things” in the safe belonged to her. (Ourania depo. at 160). The only specific
item Ourania mentioned was a “valuable” silver belt that Andreas had bought her. (Id. at
151). She also testified that Andreas had kept cash in the safe along with collectibles and
other “things that belonged to him.” (Id. at 156). Beyond that, she did not know “what
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[was] in there.” (Id. at 165).
{¶ 42} In response to Ourania’s argument, the Siblings admit that they removed
property from the safe. They insist that the nature of the property is “irrelevant,” while
acknowledging that it included at least cash and a belt with a buckle. (Siblings’ Dec. 10,
2015 brief at 7). The Siblings then reason:
This claim is not ripe for adjudication. Nothing has been converted
as it was removed from an asset of the trust and is being held in trust.
Ourania’s claim of ownership of it, including her belt buckle [sic] will be
addressed at the hearing on disbursement of trust assets.
(Id.).
{¶ 43} Upon review, we conclude that the trial court erred in entering summary
judgment in the Siblings’ favor on Ourania’s individual conversion counterclaim. We agree
with the trial court that if all the property in the safe belonged to the estate, or the trust,
then Ourania has no conversion claim. But we also agree with her argument that if the
trial court were to determine that some of the property in the safe was her personal
property, then conversion could be appropriate. Ourania’s deposition testimony creates
a genuine issue of material fact as to whether the Siblings have converted a silver belt
that belongs to her personally by removing it from the safe and failing to give her
possession of it. Although the Siblings assert that Ourania’s conversion claim “is not ripe
for adjudication,” the trial court did adjudicate the claim by granting them summary
judgment on it. The Siblings also assert that no conversion occurred because trust assets
were removed from the safe and are being held in trust. This argument ignores Ourania’s
deposition testimony that the silver belt belongs to her personally and the genuine issue
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of material fact that it may not be a trust asset at all. Accordingly, we sustain Ourania’s
third assignment of error solely with regard to the described belt.
{¶ 44} Having overruled the Siblings’ sole assignment of error on appeal, and
having sustained, or sustained in part, two of Ourania’s three assignments of error on
cross appeal, we affirm in part and reverse in part the trial court’s July 28, 2015 judgment
entry that, inter alia, sustained in part and overruled in part competing motions for
summary judgment and partial summary judgment.
{¶ 45} The trial court’s judgment is reversed insofar as it entered summary
judgment in favor of the Siblings on Ourania’s conversion counterclaim regarding the
silver belt from the safe. The trial court’s judgment also is reversed insofar as it declared
Ourania and Maria each entitled to 50 percent of the PNC CD discussed above because
there is a genuine issue of material fact whether the CD was acquired with “joint funds.”
In all other respects, the trial court’s judgment is affirmed. Finally, the cause is remanded
for resolution of all remaining issues.
.............
FAIN, J., and WELBAUM, J., concur.
Copies mailed to:
James R. Kingsley
James Papakirk
Howard M. Schwartz
James L. Jacobson
Elizabeth E.W. Weinewuth
Hon. Alice O. McCollum